Nobody needs an All-in-one PC in the kitchen, nobody needs a web-enabled washing machine, nobody needs a beta firmware on its dishwasher, and nobody needs an LCD display on the fridge.
Those stuff just get obsolete after 2 years, and become "broken" even though their main utility would still work perfectly fine without the added useless complexity.
I expect my fridge, my dishwasher and my washing machine to still work in 10 years.
Your gadget will wind up in the dump in a few years.
I've had a Mac Mini with a touch screen in my kitchen for 5 years. It acts as a media server for the whole house, shows recipes and email and lets us watch tv shows on iTunes, Netflix or Hulu while we cook. It's totally obsolete - I can't even upgrade the OS anymore - but we don't use it for anything except that "main utility".
Sometimes politicians say stupid stuff. Like when Obama said there are 57 states.
I don't agree either with Paul (slavery is too strong a word) or Obama (there are only 50 states), but I do think universal healthcare is theft.
Obama clearly doesn't think there are 57 states, and the quote actually had a huge pause:
"... it is just wonderful to be back in Oregon, and over the last 15 months we've traveled to every corner of the United States. I've now been in fifty.... seven states? I think one left to go. One left to go. Alaska and Hawaii, I was not allowed to go to even though I really wanted to visit but my staff would not justify it."
If Rand Paul was similarly flubbing a word or changing his thought midstream, then they'd be equivalent, but no - he really does believe that forcing someone to buy insurance is the same as enslaving them.
Me: Excuse me waiter! I'll have a steak
Waiter: very good sir, steaming pile of crap coming up!
Me: Um, no, I said I would like a steak
Waiter: that's fine sir, but all we serve is steaming piles of crap. No one wants it, but that's what we give them and you'll pay us for it!
Me: Uh..... I think I'll go somewhere else.... there's a nice new torrent restaurant across the street that gives me what I want and costs a lot less
Waiter: No! That's.... not right! You can't do that! We'll.... we'll.... we will sue you!
Me: Really? Everyone? You're going to sue everyone that doesn't buy steaming piles of crap from you? Good luck with that!
While I don't disagree with your overall points, this analogy misses the point. If everyone goes to the "restaurant across the street," then this restaurant goes out of business... and unfortunately, the torrent "restaurant across the street" doesn't actually make steaks. They simply go to this restaurant (while it still exists) and make copies of their steaks. But if this restaurant disappears, then the 'competing' torrent "restaurant across the street" also has no steaks.
The problem is that you don't just want "steak", you want "Game of Thrones" or "Doctor Who" or the like. And no matter how much we like to pretend, the torrent restaurant doesn't produce anything, just copies from actual creators. If those creators go away, there will still be torrents, but they won't be Game of Thrones or Doctor Who... they'll be "Hipster Bob's Documentary about Indie Music" or "Game of Thongs: the Porn Written by and for Nerds". In other words, steaming piles of crap.
Actually it IS relevant as there is a huge difference between trademark and patent protection.
Respectfully, you may be confused between utility patents, which are very different, and design patents, which are very similar to trade dress. And design patents were the issue here.
If the iPad/galaxy tablet bit were about trademark then Samsung could simply have changed the bezel colour or something else that visually differentiates. Apple doesn't want that, they want Samsung to quit making a tablet that people want to use.
Nope, as noted above, if Samsung changed any of the visual features to visually differentiate, they wouldn't infringe the design patent anymore. And in fact, in their brief, Apple mentioned a number of ways Samsung could have been different - including changing the bezel color!
No, the differences between design patents and trade dress primarily have to do with statutory damages provisions, term length, cost of applications, requirements of absolute novelty vs. just distinctiveness, and commercial use. The test for infringement, however, is almost identical.
I love how you use a car analogy, and yet when exactly the same thing happens in the car world, nobody gets sued!
Think the Chrysler 300, widely known to be a Bently knockoff, and people sell kits to make them even more so, and yet no lawsuit. Similarly most of the recent Hyundais try to look like Mercedes.
The whole of the evidence in this case preponderates in favor of finding that Roberts chose for his automobiles the exterior shapes and features of the Daytona Spyder and Testarossa with the intent of deriving benefit from the reputation of Ferrari.
Note that, although that case is trade dress related, design patents and trade dress protections are highly similar, and the distinctions are irrelevant to this discussion.
or maybe samsung was just the low hanging fruit, sue them first, sue the others later if you win?
Unlikely... Apple was primarily concerned about losing market share and diluting the distinctiveness of the iPad, which is why they were more concerned about getting injunctions. That doesn't really apply to the other devices. Basically, no one is going to confuse a Motorola Xoom with an iPad, but they may well confuse a Galaxy with an iPad (and in fact, Samsung's lawyers couldn't tell them apart at a glance). Since a large portion of Apple's success in the marketplace is built on prestige and distinctiveness - see, e.g. the white headphones of the iPhone, the distinctive look of the Macbook Air and the old TiBooks, the crazy design of the sunflower iMac, etc. - they really want to keep anyone else from making designs that look similar.
Compare it to a luxury car dealer, like Bugati... A lot of their value is in their exclusivity. They would jump immediately to sue anyone who made a Bugati look-alike, but there's little point in them suing, say, Ford.
...that Apple listed dozens of potential design changes that Samsung could make and not infringe.
You mean the things they listed like "non-rectangular screen"?
Or maybe the bit about "exagerated bezel width"
Yep, that's the one. Changing any of those things would mean that the design would not infringe their patent.
The stuff they listed was nonsensical and ridiculous. They basically said that Samsung could have made a tablet as long as it looked nothing like a tablet.
Actually, they basically said that Samsung could have made a tablet as long as it didn't look like an iPad. HP had no problem doing that. ASUS had no problem doing that. Archos had no problem doing that. Motorola had no problem doing that. Toshiba had no problem doing that.
... unless, of course, you're saying that their offerings don't look anything like tablets?
Actually, that's quite specific. In order to infringe that design, you have to copy each and every element of the design. Corners have to be the same, the bezel has to be the same, lack of logo, etc., etc. You've clearly followed the Samsung-Apple fight, so you probably know that Apple listed dozens of potential design changes that Samsung could make and not infringe. Additionally, there are dozens of competitor's models by HP and others that don't infringe. That seems pretty highly specific.
And as for new and novel, I hadn't seen anything that looked exactly like that before the iPad came out. Do you know of any? Mind you, it has to look exactly like that, which is why the Kubrick 2001 tablets don't qualify, with their legal-pad aspect ratio, 10 channel buttons, and angled control panel.
Patents like making a rectangle. Or turning a playing card sideways, a patent so fucking stupidly absurd it should have been laughed out of the office and shipped back to the fucking morons at WOTC/Hasborg along with a copy of Hoyle's Rules for Card Games as century-old prior art.
Your first link just goes to an article, not a patent. The second link goes to the original M:tG patent, which has many more limitations than just "turning a playing card sideways." Specifically:
1. A method of playing games involving two or more players, the method being suitable for games having rules for game play that include instructions on drawing, playing, and discarding game components, and a reservoir of multiple copies of a plurality of game components, the method comprising the steps of:
each player constructing their own library of a predetermined number of game components by examining and selecting game components from the reservoir of game components;
each player obtaining an initial hand of a predetermined number of game components by shuffling the library of game components and drawing at random game components from the player's library of game components; and
each player executing turns in sequence with other players by drawing, playing, and discarding game components in accordance with the rules until the game ends, said step of executing a turn comprises:
(a) making one or more game components from the player's hand of game components available for play by taking the one or more game components from the player's hand and placing the one or more game components on a playing surface; and
(b) bringing into play one or more of the available game components by:
(i) selecting one or more game components; and
(ii) designating the one or more game components being brought into play by rotating the one or more game components from an original orientation to a second orientation.
And, contrary to what you think, the Patent Office cannot simply laugh an application "out of the office". Patents are legal documents, and the Patent Office is an administrative entity, subject to the Constitutional requirements of due process. A judge can't simply convict someone of murder based on a gut feeling without evidence, and similarly, the Patent Office cannot simply deny a patent application based on a gut feeling without evidence. They have to find one or more pieces of prior art that, alone or in combination, teach or suggest each and every element of the claims. If they can't, then they can't deny a patent, any more than a judge can lock someone up without any evidence.
Now, being an avid card player, I've read Hoyle... I don't remember seeing anything in there about bringing cards into play from the player's hand by rotating them. Do you?
If you need the protection a patent affords then it should also be something non-obvious. Unlike rounded corners or a slightly different bluetooth headset. Unfortunately, the patent offices is flooded with and routinely grants patents to obvious applications as will.
... except that the "rounded corners" weren't patented. Rather, the entire and specific aesthetic design of a tablet computer was patented, in a very narrow design patent.
If this is your justification for "throwing out the entire USPTO," you're going to need to work a lot harder to convince anyone.
As in, there is no prior art for giving software away for free (or for a reduced price) based on forcing the user to view the occasional advertisement?
I am surprised Apple isn't using this "patent" to go after the ad-supported Kindle in an effort to get the upper hand in content (especially after Apple's smack-down on price fixing for e-books)....
It's just an application, and is still in examination . The claims have also changed significantly from as originally filed.
The supreme court was just plain wrong. The US law specifically excludes maths from patentability, not just "abstract" maths.
Actually, it doesn't. The three concepts - "laws of nature, mathematical algorithms, and abstract ideas" are explicitly grouped, so they must be considered in terms of common characteristics.
Additionally, while your post is interesting - and thank you - I still don't see that it supports your conclusion that all software is abstract, merely that it supports the conclusion that all software - or rather, encoded versions of software - are numbers. Abstraction, however, is a much broader (and vaguer) concept.
If you bothered to read the link I said you would find that it specifically addresses the rest of your post including showing that the supreme court was in error.
Yes, yes, I know. I've read the paper many times. You don't seem to understand, going before the Supreme Court and saying "you're all idiots, see this paper" is not going to succeed.
Additionally, it misses the point. The Supreme Court didn't say "math is unpatentable because it's math," but rather because it was abstract. Software is math, but is only unpatentable if it's similarly abstract... but it doesn't have to be.
>"Vanishingly," as in "the similarity you speak of is irrelevant."
Actually - quite the inverse - it's not a similiarity but an EXACT REPLICA. No wait, that's still not the right word, it's not even a replica - it's the EXACT SAME FUCKING THING.
If you think there is ANY difference blah blah blah...
If you bothered reading the post, you'd see that I acknowledged that there's no difference and pointed out why that fact is irrelevant to the patentability of software and why it's based on a misunderstanding of the Supreme Court's decisions.
Amazing how quickly you can latch on to one sentence, miss the rest of the paragraph, and prove that you're an ass:
I am fascinated by your post - which I contains so much information that is outright wrong as to appear to be a deliberate attempt to advocate by deception.
Thanks, I think. Of course, you've not shown any of it to be "outright wrong", so I'm not sure what your specific gripes are.
[Citation needed]
Can you cite a software patent that has merit? I have read close on 50 at this point and seen hundreds of summaries and have yet to see it.
Happily, but before I do so, I'd like to call attention to your goalpost moving. You stated "[Software patents] simply memorialize things that everyone always did - commenting inside of curly braces, using tables for compression, having the "AM" flip to "PM" when you scroll the hours past noon, having plugins in web browsers and "one click purchase buttons" and so forth," and I merely asked for some citation. In response, you swiftly discarded that assertion and demanded instead that I produce a software patent.
I'll do so, after you've provided the requested citation. After all, if you're not going to argue in good faith, I see no need to do any further research.
Yes, but the nice part is that you're not going to be responsible for damages until you do get notified that you infringe.
This is part of how software patents kill the economy and destroy jobs, because the "damages" are a legal negotiation of unlimited dimension and cost
Except that they're not unlimited, by definition. If you only made $1000 infringing the patent, then your damages at most can be $1000. Incidentally, this is why small developers, who may infringe hundreds of patents, usually don't need to worry about getting sued. Who's going to spend $100k in a patent litigation lasting 6 months to earn $1k? Trolls exist to earn money, not waste it.
Your software that exists today cannot possibly infringe any patent that is filed for tomorrow, by definition.
That was great, it was true.
Thank you for acknowledging your error.
You'll notice that this didn't mitigate the software patent problem at all, since prior art is virtually ubiquitous among software patents.
Again, this was the assertion that I asked for a [citation] of. So, please do so. Shifting the goalposts and repeatedly making the same assertion without evidence won't work.
But your own AIA instituted First to File, so you are precisely wrong, now, no?
No. First to file actually has nothing to do with prior art. All it affects is the old Interference procedure, under 35 USC 102(g), where two inventors separately and simultaneously file for the same exact patent. It was very rare - about 20 per year - and very expensive - requiring about $25k in costs prior to the application even being examined. All first to file changes is that, rather than going through a long procedure to find out which inventor really thought of the idea first, instead, the one that got to the patent office first wins.
But no, it doesn't affect prior art at all. So, you are "precisely wrong".
You may have missed Congress passing the AIA
Software and "Business Method" Changes: There has been much debate in recent years in the software community about the propriety of software patents, and the America Invents Act does little to clear that up, except in a few minor niches. One provision, for example, specifically excludes tax preparation software from a rule prohibiting the patenting of tax strategies, and another creates a way to defeat patents related to financial products, with the aim of quashing a certain group of patents for check-imaging software.
They simply memorialize things that everyone always did - commenting inside of curly braces, using tables for compression, having the "AM" flip to "PM" when you scroll the hours past noon, having plugins in web browsers and "one click purchase buttons" and so forth.
[Citation needed]
Specifically, find a patent that claims one of those things, and then find a reference that pre-dates it showing someone doing that. Mind you, the reference has to show someone doing what the claims say, not just doing something similar to the title of the patent. There are tens of thousands of patents titled "wheel" or "engine"... They're not all claiming "wheels" or "engines".
No one can ever know what their work infringes on. Not even Microsoft or Google, who have carte blance budgets for such things. They simply write code and wait to get sued.
Yes, but the nice part is that you're not going to be responsible for damages until you do get notified that you infringe.
Even if the software patent fairy came down and waved her little magic wand, and you could know exactly which hundreds or thousands of patents you infringed, it would be worthless by tomorrow. Thousands of new patents are filed every day.
Your software that exists today cannot possibly infringe any patent that is filed for tomorrow, by definition. That magic wand analysis wouldn't be at all worthless.
If you are wondering who created software patent law, the answer is, not congress. Some lawyers tried it, and it flew, and it's happened all on its own - a little power grab by the patent bar and the USPTO.
You may have missed Congress passing the AIA. It's okay, it's pretty obscure and wasn't discussed on Slashdot or elsewhere.
This is partly why so few industrialized countries other than the U.S. have a software patent regime the way we do, because it is so prima facie ridiculous. They have been rejected in Europe and Asia.
Actually, Europe has exactly the same rules as the US on software patents: software, alone, is not patentable. A machine that executes software is patentable.
Meanwhile there is very little basis for software patent law to exist even on this basis in the U.S.
Software's not a method? That's a novel claim. Maybe you should patent it.
The Supreme Court has already famously struck down patents on i.e. math equations, which are vanishingly similar.
"Vanishingly," as in "the similarity you speak of is irrelevant." They didn't say that math was unpatentable because it wasn't a method. Rather, it had to do with preemption of an abstract idea, and really had to do with the fact that mathematical algorithms are really just abstractions of inherent laws of nature. Are you saying that all software is really just laws of nature? 'Cause if not, the fact that software - just like any machine - can be described in a mathematical algorithm doesn't mean that software is unpatentable, any more that it means that machines are unpatentable.
They came quite close to explicitly striking down software patents already in En Re Bilski.
Actually, they unanimously affirmed patentability of software, as well as unanimously affirming patentability of business methods.
Good day, sir. Respond if you like, I won't read it.
Yes, but hopefully it will slow down the spread of your FUD.
Actually, the only mistake I appear to have made was in crediting Apple with the swipe-to-unlock patent. It seems the truth is more complicated.
Incidentally, the patent mentioned in that linked article doesn't cover swipe to unlock. Here's claim 1:
1. A non-transitory computer readable medium storing a computer program with computer program code, which, when read by a mobile handheld computer unit, allows the computer to present a user interface for the mobile handheld computer unit, the user interface comprising:
a touch sensitive area in which a representation of a function is provided, wherein the representation consists of only one option for activating the function and wherein the function is activated by a multi-step operation comprising (i) an object touching the touch sensitive area at a location where the representation is provided and then (ii) the object gliding along the touch sensitive area away from the touched location, wherein the representation of the function is not relocated or duplicated during the gliding.
Since the unlock switch is relocated under your finger as you swipe, it doesn't infringe this patent.
No, but I do have a company-issued iPad, which I use rarely. After I posted, I realized that the home screen also has the little dots indicating the current page, so that wouldn't be covered by the patent.
Not sure that helps... The claims only recite an "image", which could be the display of one page of icons. It doesn't require that the entire screen changes. In fact, the specification talks about lots of graphical objects being shown on a screen, and being able to flick them away one at a time. So, the fact that the dots remain is irrelevant, since they could be considered a different image.
I haven't seen any Apple products that behave the way the claims are written. Dragging, then releasing while moving, imparts some momentum to the motion, but there's no threshold to that velocity.
I had thought that too, until I tried flipping app pages on my iPhone. You can either drag slowly (including even stopping) past a certain point, and it will flip pages (position threshold); or you can drag quickly, but you don't have to drag very far, and it will flip pages (velocity threshold). Try different swipe speeds and you'll see what I mean.
Actually, the only mistake I appear to have made was in crediting Apple with the swipe-to-unlock patent. It seems the truth is more complicated.
Read that article and the associated claims, and tell me how, in your professional opinion as a patent attorney, the "progress of science and the useful arts" was advanced when the USPTO granted a 20-year monopoly on all likely implementations of the slide-to-unlock gesture.
This oughtta be good.
Sure. First, you're begging the question - your question requires that "all likely implementations" are covered by this patent, which means that you're presuming there's no reasonable way to design around the patent. That's not true.
Second, there's no requirement that an individual patent advances the "progress of science and the useful arts". Rather, that's the mission of the patent system (and copyright system) as a whole. Within that, however, there may be patents on gambling devices, butt-kicking machines, machines for fooling customers into thinking they're drinking fresh squeezed orange juice instead of concentrate, etc., none of which particularly advance the useful arts. However, the required public disclosure advances the useful arts because it takes away the incentives to have trade secrets. White papers, functional specs, open sourcing of proprietary code, etc. Those are what the patent system encourages and protects, and those are what advance the useful arts.
So, finally, yes. The USPTO granting patents, even on something like slide-to-unlock, encourages public disclosure of new inventions and promotes the progress of the useful arts.
Ignoring whether the patent is valid or not (seems quite trivial to me) how is this "something we already know how to do, but on a computer"?
Because it's obvious to the first engineer who actually encounters the problem in the course of day-to-day work. Consider the Apple swipe-to-unlock patent, or Amazon's patnet on one-click purchasing. The only "innovation" in either case was the original idea... and you're not supposed to be able to claim ideas.
You do know that neither of those patents actually claimed "swipe-to-unlock" or "one-click purchasing," right? They claim very specific implementations, which is why even with Oreilly throwing a $10,000 bounty at it, he couldn't knock down the One-Click patent.
I haven't read the claims, but this patent sounds very similar. If the summary is accurate...
Personally I think it would be a good idea to disable port 80 on all devices 3 months after support ends to keep the upcoming security nightmare. It will anger many users but many malware writters will target XP if MacOSX has so many infections yet remains so small marketshare wise still. We do not allow vehicles with rags for a gas cap to go on the road right?
Just out of curiosity, what was your opinion when Sony removed Boot Other OS from the PS3? "It's their right to patch systems if you want to keep using their servers" or "they're removing a valued feature without asking the users, this is fraud and theft!"
Has *anyone* ever fought back asserting that by Article 1, section 8(8) specifically says "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors", and since trolls is neither the author nor inventor, nor to they use the material of the patent to produce the product of the patent, their claim to the patent is invalid?
Not that I know of, but they would fail. The Constitution doesn't define what a patent is, but rather gives Congress the power to pass laws securing time-limited monopolies for copyrights and patents. In the use of that power, they passed 35 USC 261, which states:
Subject to the provisions of this title, patents shall have the attributes of personal property.
Applications for patent, patents, or any interest therein, shall be assignable in law by an instrument in writing. The applicant, patentee, or his assigns or legal representatives may in like manner grant and convey an exclusive right under his application for patent, or patents, to the whole or any specified part of the United States.
So, arguing that the troll's claim to the patent is invalid means you're arguing that Congress lacked the power to pass that law... Specifically, you'd have to argue that letting inventors sell their patents doesn't encourage at least some inventors to invent in the first place, and I doubt such an argument would be entertained by any court, much less the Supreme Court.
I've done the consulting bit quite a lot. I got sick of people wanting me to code cheap to get a piece of their idea. On top of that, they want anything I think about whilst I am associated with them. Even further, they want me to indemnify them in case of any patent or copyright issues. Geez.
One clown had a cheezy real estate idea, and had every clause in the book as well as agreement to not work in any related industry. All this for a 4 month proof of concept. I actually laughed at him, and said "I can't sign this, this is ridiculous" He response? We've all heard it "Why, its just a standard contract the lawyers wrote up. We wouldn't enforce any of that stuff unless there was a real problem. We just want the agreement to have teeth."
That's a contract with a non-compete clause. They're usually pretty strict, can be negotiated as you say, and you get some compensation for it as a contractor or employee. But that's not what this article is about: a non-disclosure agreement is one that says you simply will not tell anybody about the idea you're about to hear within the next year. That's not really unreasonable - it's their idea, and if you don't want to hear it, they don't have to tell you. You aren't out 4 months of work, and they haven't paid you a dime.
Slashdot Mirror
Nobody needs an All-in-one PC in the kitchen, nobody needs a web-enabled washing machine, nobody needs a beta firmware on its dishwasher, and nobody needs an LCD display on the fridge.
Those stuff just get obsolete after 2 years, and become "broken" even though their main utility would still work perfectly fine without the added useless complexity. I expect my fridge, my dishwasher and my washing machine to still work in 10 years.
Your gadget will wind up in the dump in a few years.
I've had a Mac Mini with a touch screen in my kitchen for 5 years. It acts as a media server for the whole house, shows recipes and email and lets us watch tv shows on iTunes, Netflix or Hulu while we cook. It's totally obsolete - I can't even upgrade the OS anymore - but we don't use it for anything except that "main utility".
I expect your expectations are wrong.
Sometimes politicians say stupid stuff. Like when Obama said there are 57 states.
I don't agree either with Paul (slavery is too strong a word) or Obama (there are only 50 states), but I do think universal healthcare is theft.
Obama clearly doesn't think there are 57 states, and the quote actually had a huge pause:
"... it is just wonderful to be back in Oregon, and over the last 15 months we've traveled to every corner of the United States. I've now been in fifty .... seven states? I think one left to go. One left to go. Alaska and Hawaii, I was not allowed to go to even though I really wanted to visit but my staff would not justify it."
If Rand Paul was similarly flubbing a word or changing his thought midstream, then they'd be equivalent, but no - he really does believe that forcing someone to buy insurance is the same as enslaving them.
Me: Excuse me waiter! I'll have a steak
Waiter: very good sir, steaming pile of crap coming up!
Me: Um, no, I said I would like a steak
Waiter: that's fine sir, but all we serve is steaming piles of crap. No one wants it, but that's what we give them and you'll pay us for it!
Me: Uh..... I think I'll go somewhere else.... there's a nice new torrent restaurant across the street that gives me what I want and costs a lot less
Waiter: No! That's.... not right! You can't do that! We'll.... we'll.... we will sue you!
Me: Really? Everyone? You're going to sue everyone that doesn't buy steaming piles of crap from you? Good luck with that!
While I don't disagree with your overall points, this analogy misses the point. If everyone goes to the "restaurant across the street," then this restaurant goes out of business... and unfortunately, the torrent "restaurant across the street" doesn't actually make steaks. They simply go to this restaurant (while it still exists) and make copies of their steaks. But if this restaurant disappears, then the 'competing' torrent "restaurant across the street" also has no steaks.
The problem is that you don't just want "steak", you want "Game of Thrones" or "Doctor Who" or the like. And no matter how much we like to pretend, the torrent restaurant doesn't produce anything, just copies from actual creators. If those creators go away, there will still be torrents, but they won't be Game of Thrones or Doctor Who... they'll be "Hipster Bob's Documentary about Indie Music" or "Game of Thongs: the Porn Written by and for Nerds". In other words, steaming piles of crap.
Actually it IS relevant as there is a huge difference between trademark and patent protection.
Respectfully, you may be confused between utility patents, which are very different, and design patents, which are very similar to trade dress. And design patents were the issue here.
If the iPad/galaxy tablet bit were about trademark then Samsung could simply have changed the bezel colour or something else that visually differentiates. Apple doesn't want that, they want Samsung to quit making a tablet that people want to use.
Nope, as noted above, if Samsung changed any of the visual features to visually differentiate, they wouldn't infringe the design patent anymore. And in fact, in their brief, Apple mentioned a number of ways Samsung could have been different - including changing the bezel color!
No, the differences between design patents and trade dress primarily have to do with statutory damages provisions, term length, cost of applications, requirements of absolute novelty vs. just distinctiveness, and commercial use. The test for infringement, however, is almost identical.
I love how you use a car analogy, and yet when exactly the same thing happens in the car world, nobody gets sued!
Think the Chrysler 300, widely known to be a Bently knockoff, and people sell kits to make them even more so, and yet no lawsuit. Similarly most of the recent Hyundais try to look like Mercedes.
Lawsuit.
The whole of the evidence in this case preponderates in favor of finding that Roberts chose for his automobiles the exterior shapes and features of the Daytona Spyder and Testarossa with the intent of deriving benefit from the reputation of Ferrari.
Note that, although that case is trade dress related, design patents and trade dress protections are highly similar, and the distinctions are irrelevant to this discussion.
or maybe samsung was just the low hanging fruit, sue them first, sue the others later if you win?
Unlikely... Apple was primarily concerned about losing market share and diluting the distinctiveness of the iPad, which is why they were more concerned about getting injunctions. That doesn't really apply to the other devices. Basically, no one is going to confuse a Motorola Xoom with an iPad, but they may well confuse a Galaxy with an iPad (and in fact, Samsung's lawyers couldn't tell them apart at a glance). Since a large portion of Apple's success in the marketplace is built on prestige and distinctiveness - see, e.g. the white headphones of the iPhone, the distinctive look of the Macbook Air and the old TiBooks, the crazy design of the sunflower iMac, etc. - they really want to keep anyone else from making designs that look similar.
Compare it to a luxury car dealer, like Bugati... A lot of their value is in their exclusivity. They would jump immediately to sue anyone who made a Bugati look-alike, but there's little point in them suing, say, Ford.
...that Apple listed dozens of potential design changes that Samsung could make and not infringe.
You mean the things they listed like "non-rectangular screen"?
Or maybe the bit about "exagerated bezel width"
Yep, that's the one. Changing any of those things would mean that the design would not infringe their patent.
The stuff they listed was nonsensical and ridiculous. They basically said that Samsung could have made a tablet as long as it looked nothing like a tablet.
Actually, they basically said that Samsung could have made a tablet as long as it didn't look like an iPad. HP had no problem doing that. ASUS had no problem doing that. Archos had no problem doing that. Motorola had no problem doing that. Toshiba had no problem doing that.
Um, no.
Here's the actual design that Apple is basing its case on: http://www.scribd.com/doc/61944044/Community-Design-000181607-0001
Nothing about that is new, novel, or "specific".
Actually, that's quite specific. In order to infringe that design, you have to copy each and every element of the design. Corners have to be the same, the bezel has to be the same, lack of logo, etc., etc. You've clearly followed the Samsung-Apple fight, so you probably know that Apple listed dozens of potential design changes that Samsung could make and not infringe. Additionally, there are dozens of competitor's models by HP and others that don't infringe. That seems pretty highly specific.
And as for new and novel, I hadn't seen anything that looked exactly like that before the iPad came out. Do you know of any? Mind you, it has to look exactly like that, which is why the Kubrick 2001 tablets don't qualify, with their legal-pad aspect ratio, 10 channel buttons, and angled control panel.
Patents like making a rectangle. Or turning a playing card sideways, a patent so fucking stupidly absurd it should have been laughed out of the office and shipped back to the fucking morons at WOTC/Hasborg along with a copy of Hoyle's Rules for Card Games as century-old prior art.
Your first link just goes to an article, not a patent. The second link goes to the original M:tG patent, which has many more limitations than just "turning a playing card sideways." Specifically:
1. A method of playing games involving two or more players, the method being suitable for games having rules for game play that include instructions on drawing, playing, and discarding game components, and a reservoir of multiple copies of a plurality of game components, the method comprising the steps of:
each player constructing their own library of a predetermined number of game components by examining and selecting game components from the reservoir of game components;
each player obtaining an initial hand of a predetermined number of game components by shuffling the library of game components and drawing at random game components from the player's library of game components; and
each player executing turns in sequence with other players by drawing, playing, and discarding game components in accordance with the rules until the game ends, said step of executing a turn comprises:
(a) making one or more game components from the player's hand of game components available for play by taking the one or more game components from the player's hand and placing the one or more game components on a playing surface; and
(b) bringing into play one or more of the available game components by:
(i) selecting one or more game components; and
(ii) designating the one or more game components being brought into play by rotating the one or more game components from an original orientation to a second orientation.
And, contrary to what you think, the Patent Office cannot simply laugh an application "out of the office". Patents are legal documents, and the Patent Office is an administrative entity, subject to the Constitutional requirements of due process. A judge can't simply convict someone of murder based on a gut feeling without evidence, and similarly, the Patent Office cannot simply deny a patent application based on a gut feeling without evidence. They have to find one or more pieces of prior art that, alone or in combination, teach or suggest each and every element of the claims. If they can't, then they can't deny a patent, any more than a judge can lock someone up without any evidence.
Now, being an avid card player, I've read Hoyle... I don't remember seeing anything in there about bringing cards into play from the player's hand by rotating them. Do you?
If you need the protection a patent affords then it should also be something non-obvious. Unlike rounded corners or a slightly different bluetooth headset. Unfortunately, the patent offices is flooded with and routinely grants patents to obvious applications as will.
... except that the "rounded corners" weren't patented. Rather, the entire and specific aesthetic design of a tablet computer was patented, in a very narrow design patent.
If this is your justification for "throwing out the entire USPTO," you're going to need to work a lot harder to convince anyone.
As in, there is no prior art for giving software away for free (or for a reduced price) based on forcing the user to view the occasional advertisement?
I am surprised Apple isn't using this "patent" to go after the ad-supported Kindle in an effort to get the upper hand in content (especially after Apple's smack-down on price fixing for e-books)....
It's just an application, and is still in examination . The claims have also changed significantly from as originally filed.
The supreme court was just plain wrong. The US law specifically excludes maths from patentability, not just "abstract" maths.
Actually, it doesn't. The three concepts - "laws of nature, mathematical algorithms, and abstract ideas" are explicitly grouped, so they must be considered in terms of common characteristics.
Additionally, while your post is interesting - and thank you - I still don't see that it supports your conclusion that all software is abstract, merely that it supports the conclusion that all software - or rather, encoded versions of software - are numbers. Abstraction, however, is a much broader (and vaguer) concept.
If you bothered to read the link I said you would find that it specifically addresses the rest of your post including showing that the supreme court was in error.
Yes, yes, I know. I've read the paper many times. You don't seem to understand, going before the Supreme Court and saying "you're all idiots, see this paper" is not going to succeed.
Additionally, it misses the point. The Supreme Court didn't say "math is unpatentable because it's math," but rather because it was abstract. Software is math, but is only unpatentable if it's similarly abstract... but it doesn't have to be.
>"Vanishingly," as in "the similarity you speak of is irrelevant."
Actually - quite the inverse - it's not a similiarity but an EXACT REPLICA. No wait, that's still not the right word, it's not even a replica - it's the EXACT SAME FUCKING THING.
If you think there is ANY difference blah blah blah...
If you bothered reading the post, you'd see that I acknowledged that there's no difference and pointed out why that fact is irrelevant to the patentability of software and why it's based on a misunderstanding of the Supreme Court's decisions.
Amazing how quickly you can latch on to one sentence, miss the rest of the paragraph, and prove that you're an ass:
You sir, are just plain ignorant.
I am fascinated by your post - which I contains so much information that is outright wrong as to appear to be a deliberate attempt to advocate by deception.
Thanks, I think. Of course, you've not shown any of it to be "outright wrong", so I'm not sure what your specific gripes are.
[Citation needed]
Can you cite a software patent that has merit? I have read close on 50 at this point and seen hundreds of summaries and have yet to see it.
Happily, but before I do so, I'd like to call attention to your goalpost moving. You stated "[Software patents] simply memorialize things that everyone always did - commenting inside of curly braces, using tables for compression, having the "AM" flip to "PM" when you scroll the hours past noon, having plugins in web browsers and "one click purchase buttons" and so forth," and I merely asked for some citation. In response, you swiftly discarded that assertion and demanded instead that I produce a software patent.
I'll do so, after you've provided the requested citation. After all, if you're not going to argue in good faith, I see no need to do any further research.
Yes, but the nice part is that you're not going to be responsible for damages until you do get notified that you infringe.
This is part of how software patents kill the economy and destroy jobs, because the "damages" are a legal negotiation of unlimited dimension and cost
Except that they're not unlimited, by definition. If you only made $1000 infringing the patent, then your damages at most can be $1000. Incidentally, this is why small developers, who may infringe hundreds of patents, usually don't need to worry about getting sued. Who's going to spend $100k in a patent litigation lasting 6 months to earn $1k? Trolls exist to earn money, not waste it.
Your software that exists today cannot possibly infringe any patent that is filed for tomorrow, by definition.
That was great, it was true.
Thank you for acknowledging your error.
You'll notice that this didn't mitigate the software patent problem at all, since prior art is virtually ubiquitous among software patents.
Again, this was the assertion that I asked for a [citation] of. So, please do so. Shifting the goalposts and repeatedly making the same assertion without evidence won't work.
But your own AIA instituted First to File, so you are precisely wrong, now, no?
No. First to file actually has nothing to do with prior art. All it affects is the old Interference procedure, under 35 USC 102(g), where two inventors separately and simultaneously file for the same exact patent. It was very rare - about 20 per year - and very expensive - requiring about $25k in costs prior to the application even being examined. All first to file changes is that, rather than going through a long procedure to find out which inventor really thought of the idea first, instead, the one that got to the patent office first wins.
But no, it doesn't affect prior art at all. So, you are "precisely wrong".
You may have missed Congress passing the AIA
Software and "Business Method" Changes: There has been much debate in recent years in the software community about the propriety of software patents, and the America Invents Act does little to clear that up, except in a few minor niches. One provision, for example, specifically excludes tax preparation software from a rule prohibiting the patenting of tax strategies, and another creates a way to defeat patents related to financial products, with the aim of quashing a certain group of patents for check-imaging software.
--5 Key Facts
They simply memorialize things that everyone always did - commenting inside of curly braces, using tables for compression, having the "AM" flip to "PM" when you scroll the hours past noon, having plugins in web browsers and "one click purchase buttons" and so forth.
[Citation needed]
Specifically, find a patent that claims one of those things, and then find a reference that pre-dates it showing someone doing that. Mind you, the reference has to show someone doing what the claims say, not just doing something similar to the title of the patent. There are tens of thousands of patents titled "wheel" or "engine"... They're not all claiming "wheels" or "engines".
No one can ever know what their work infringes on. Not even Microsoft or Google, who have carte blance budgets for such things. They simply write code and wait to get sued.
Yes, but the nice part is that you're not going to be responsible for damages until you do get notified that you infringe.
Even if the software patent fairy came down and waved her little magic wand, and you could know exactly which hundreds or thousands of patents you infringed, it would be worthless by tomorrow. Thousands of new patents are filed every day.
Your software that exists today cannot possibly infringe any patent that is filed for tomorrow, by definition. That magic wand analysis wouldn't be at all worthless.
If you are wondering who created software patent law, the answer is, not congress. Some lawyers tried it, and it flew, and it's happened all on its own - a little power grab by the patent bar and the USPTO.
You may have missed Congress passing the AIA. It's okay, it's pretty obscure and wasn't discussed on Slashdot or elsewhere.
This is partly why so few industrialized countries other than the U.S. have a software patent regime the way we do, because it is so prima facie ridiculous. They have been rejected in Europe and Asia.
Actually, Europe has exactly the same rules as the US on software patents: software, alone, is not patentable. A machine that executes software is patentable.
Meanwhile there is very little basis for software patent law to exist even on this basis in the U.S.
Software's not a method? That's a novel claim. Maybe you should patent it.
The Supreme Court has already famously struck down patents on i.e. math equations, which are vanishingly similar.
"Vanishingly," as in "the similarity you speak of is irrelevant." They didn't say that math was unpatentable because it wasn't a method. Rather, it had to do with preemption of an abstract idea, and really had to do with the fact that mathematical algorithms are really just abstractions of inherent laws of nature. Are you saying that all software is really just laws of nature? 'Cause if not, the fact that software - just like any machine - can be described in a mathematical algorithm doesn't mean that software is unpatentable, any more that it means that machines are unpatentable.
They came quite close to explicitly striking down software patents already in En Re Bilski.
Actually, they unanimously affirmed patentability of software, as well as unanimously affirming patentability of business methods.
Good day, sir. Respond if you like, I won't read it.
Yes, but hopefully it will slow down the spread of your FUD.
Actually, the only mistake I appear to have made was in crediting Apple with the swipe-to-unlock patent. It seems the truth is more complicated.
Incidentally, the patent mentioned in that linked article doesn't cover swipe to unlock. Here's claim 1:
1. A non-transitory computer readable medium storing a computer program with computer program code, which, when read by a mobile handheld computer unit, allows the computer to present a user interface for the mobile handheld computer unit, the user interface comprising:
a touch sensitive area in which a representation of a function is provided, wherein the representation consists of only one option for activating the function and wherein the function is activated by a multi-step operation comprising (i) an object touching the touch sensitive area at a location where the representation is provided and then (ii) the object gliding along the touch sensitive area away from the touched location, wherein the representation of the function is not relocated or duplicated during the gliding.
Since the unlock switch is relocated under your finger as you swipe, it doesn't infringe this patent.
No, but I do have a company-issued iPad, which I use rarely. After I posted, I realized that the home screen also has the little dots indicating the current page, so that wouldn't be covered by the patent.
Not sure that helps... The claims only recite an "image", which could be the display of one page of icons. It doesn't require that the entire screen changes. In fact, the specification talks about lots of graphical objects being shown on a screen, and being able to flick them away one at a time. So, the fact that the dots remain is irrelevant, since they could be considered a different image.
I haven't seen any Apple products that behave the way the claims are written. Dragging, then releasing while moving, imparts some momentum to the motion, but there's no threshold to that velocity.
I had thought that too, until I tried flipping app pages on my iPhone. You can either drag slowly (including even stopping) past a certain point, and it will flip pages (position threshold); or you can drag quickly, but you don't have to drag very far, and it will flip pages (velocity threshold). Try different swipe speeds and you'll see what I mean.
Actually, the only mistake I appear to have made was in crediting Apple with the swipe-to-unlock patent. It seems the truth is more complicated.
Read that article and the associated claims, and tell me how, in your professional opinion as a patent attorney, the "progress of science and the useful arts" was advanced when the USPTO granted a 20-year monopoly on all likely implementations of the slide-to-unlock gesture.
This oughtta be good.
Sure. First, you're begging the question - your question requires that "all likely implementations" are covered by this patent, which means that you're presuming there's no reasonable way to design around the patent. That's not true.
Second, there's no requirement that an individual patent advances the "progress of science and the useful arts". Rather, that's the mission of the patent system (and copyright system) as a whole. Within that, however, there may be patents on gambling devices, butt-kicking machines, machines for fooling customers into thinking they're drinking fresh squeezed orange juice instead of concentrate, etc., none of which particularly advance the useful arts. However, the required public disclosure advances the useful arts because it takes away the incentives to have trade secrets. White papers, functional specs, open sourcing of proprietary code, etc. Those are what the patent system encourages and protects, and those are what advance the useful arts.
So, finally, yes. The USPTO granting patents, even on something like slide-to-unlock, encourages public disclosure of new inventions and promotes the progress of the useful arts.
Ignoring whether the patent is valid or not (seems quite trivial to me) how is this "something we already know how to do, but on a computer"?
Because it's obvious to the first engineer who actually encounters the problem in the course of day-to-day work. Consider the Apple swipe-to-unlock patent, or Amazon's patnet on one-click purchasing. The only "innovation" in either case was the original idea... and you're not supposed to be able to claim ideas.
You do know that neither of those patents actually claimed "swipe-to-unlock" or "one-click purchasing," right? They claim very specific implementations, which is why even with Oreilly throwing a $10,000 bounty at it, he couldn't knock down the One-Click patent.
I haven't read the claims, but this patent sounds very similar. If the summary is accurate...
All three of those phrases indicate your error.
Personally I think it would be a good idea to disable port 80 on all devices 3 months after support ends to keep the upcoming security nightmare. It will anger many users but many malware writters will target XP if MacOSX has so many infections yet remains so small marketshare wise still. We do not allow vehicles with rags for a gas cap to go on the road right?
Just out of curiosity, what was your opinion when Sony removed Boot Other OS from the PS3? "It's their right to patch systems if you want to keep using their servers" or "they're removing a valued feature without asking the users, this is fraud and theft!"
Has *anyone* ever fought back asserting that by Article 1, section 8(8) specifically says "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors", and since trolls is neither the author nor inventor, nor to they use the material of the patent to produce the product of the patent, their claim to the patent is invalid?
Not that I know of, but they would fail. The Constitution doesn't define what a patent is, but rather gives Congress the power to pass laws securing time-limited monopolies for copyrights and patents. In the use of that power, they passed 35 USC 261, which states:
Subject to the provisions of this title, patents shall have the attributes of personal property.
Applications for patent, patents, or any interest therein, shall be assignable in law by an instrument in writing. The applicant, patentee, or his assigns or legal representatives may in like manner grant and convey an exclusive right under his application for patent, or patents, to the whole or any specified part of the United States.
So, arguing that the troll's claim to the patent is invalid means you're arguing that Congress lacked the power to pass that law... Specifically, you'd have to argue that letting inventors sell their patents doesn't encourage at least some inventors to invent in the first place, and I doubt such an argument would be entertained by any court, much less the Supreme Court.
The original posting of the TED talk and subsequent discussion is at http://www.fark.com/comments/7055377/Drews-TED-talk-is-up-How-I-Beat-a-Patent-Troll.
I've done the consulting bit quite a lot. I got sick of people wanting me to code cheap to get a piece of their idea. On top of that, they want anything I think about whilst I am associated with them. Even further, they want me to indemnify them in case of any patent or copyright issues. Geez.
One clown had a cheezy real estate idea, and had every clause in the book as well as agreement to not work in any related industry. All this for a 4 month proof of concept. I actually laughed at him, and said "I can't sign this, this is ridiculous" He response? We've all heard it "Why, its just a standard contract the lawyers wrote up. We wouldn't enforce any of that stuff unless there was a real problem. We just want the agreement to have teeth."
That's a contract with a non-compete clause. They're usually pretty strict, can be negotiated as you say, and you get some compensation for it as a contractor or employee. But that's not what this article is about: a non-disclosure agreement is one that says you simply will not tell anybody about the idea you're about to hear within the next year. That's not really unreasonable - it's their idea, and if you don't want to hear it, they don't have to tell you. You aren't out 4 months of work, and they haven't paid you a dime.